CASE 7: Homicide and the Law in 18th Century China

The capital case review written by Bai Juyi (772-846):

Complaint Against the Grand Court of Review’s Decision on the Death of Yao Wenxiu’s Wife

Fifth Month, 11th day, 822 A.D.:

According to the decision of the Ministry of Justice and the Grand Court of Review: “The law states: ‘If a killing does not occur in the midst of a fight [as accident or self-defense], that is without reasonable cause, then we call it “murder” [literally: “a deliberate killing”].’ In the case before us, Yao Wenxiu killed with reasonable cause, therefore it was not murder.” According to the Grand Court Officer Cui Yuanzhi’s report: “The law states: ‘When two people struggle it is a “fight”; when two people assault one another it is a “mutual beating”; if the mutual fighting results in a death, only then do we call it “(accidental) killing due to a fight” [comparable to “manslaughter” in our system].’ In the case at hand, Ah Wang (the wife) had been beaten wantonly, leading to her death. Upon examining Yao Wenxiu’s body, it was found that he hadn’t a single wound. Therefore we cannot say the assault had been mutual. Ah Wang died that very night, so we cannot say that both had engaged in the fight. Therefore it is not an ‘(accidental) killing due to a fight.’ Moreover, long-term resentment was involved, therefore it should be treated as murder.”

The Tang Legal Code says: “If a killing does not occur in the midst of a fight [as accident or self-defense], without (reasonable) cause, then we call it ‘murder’.” When the Code says “cause” here, it refers to the fight [accidental injury] as cause, not to any other cause. In this case the Ministry of Justice and the Grand Court reason that Yao Wenxiu grew angry at his wife and lost control, and that therefore it was not without cause, but indeed was with cause, and on this account he beat her, and so it was not murder. But this is to take the two words “without cause” out of context. According to this line of reasoning, anyone in the empire could say they killed someone with (reasonable) cause. Supposing you killed someone, you need only say “I killed him/her with reason; therefore it isn’t murder.” Does this make any sense? Indeed, (according to this reasoning), in the entire empire, who should be regarded as killing without cause? It is sufficient to realize that “cause” (in the Tang Code) refers to the fight itself, not to any other cause. And so whenever we refer to death in a fight, we mean that the cause is not due to hatred or jealousy, but is merely an accident of the fight: one hits, the other retaliates and so death occurs without the intention of inflicting death. In such cases, (the death) is not treated as murder because, originally, there was no intention to kill.

In the case at hand, Yao Wenxiu’s anger at his wife was quite intense, and he had long harbored thoughts of vengeance and hatred toward her. He beat her wantonly and she died that very night. If you look into the facts, this wasn’t an accidental killing. If this isn’t murder, then what is!? Supposing we argue that this wasn’t murder because the death was preceded by an argument. In that case, anyone who plots to kill another can simply first stage an argument, start a fight and, once the fight has started, grab a weapon and beat the other to death. Afterwards they can say “I had cause to kill him/her, and so it wasn’t murder.” How should this make any sense?

Even if you suppose that it occurred during a fight, the logic still doesn’t hold. But in this case Ah Wang is already dead, and so we have no way to determine if there really was a mutual fight. Yao Wenxiu claims that it was a mutual fight, but what proof do we have of that? Moreover, the Grand Court cited as precedent killings by beating in the cases of “Liu Shixin and Luo Quanru” as well as others, and basing their decision on those precedents, argued that it wasn’t murder. I’m afraid that in the case of Yao Wenxiu, the facts of the case are not the same.

Supposing there was some similarity (among the cases), how would this prevent a false decision? The citing of precedent is not sufficient for proof. It is only when the decision of guilt relies on the evidence of the case that the law can stand the test of time. Should we not accept Cui Yuanshi’s decision and approve instead the decision of the Grand Court, I truly fear that those beaten to death will henceforth suffer double injustice. From this day on, murderers will have an excuse. Please consider carefully the documents and records as in the past.

Respectfully submitted.

The case went up to the Emperor who decided in favor of Bai’s recommendation. Yao was sentenced to death.

Much of Bai’s argument turns on the ambiguity of shi4 in Chinese, which, among other things, can mean “cause,” or “reasonable cause.” On the other hand Chinese permits great precision in distinguishing different kinds of dispute. Look again at the Tang Legal Code: “When two people struggle/zheng it is a ‘fight’/dou; when two people assault one another/xiangji it is ‘mutual beating/xiangou’; if the mutual fighting/jiaodou results in a death, only then do we call it ‘accidental killing due to a fight’.” Zheng implies that two people are competing over advantage or resources, but this competition need not be violent. Dou implies that the struggle has become physical. The word xiang, mutual, distinguishes between an assault by one against another and a fight between two willing participants. The technical term for this was “mutal beating/xiangou, ” in other words, only when two people strike one other physically can the crime be called “mutual assault.” Jiaodou implies that both were participating in the fight; both were attacking one another. The mutuality, and the absence of intent, was regarded as essential in order for the crime to be considered manslaughter.